The most common question from clients with respect to terminations without cause and without notice in the absence of an enforceable employment agreement is “How Much Notice?”. Courts will look at four key elements to determine how much is reasonable notice: age, length of service, position and the availability of similar employment having regard to the employee’s skills and qualifications. The court will often look at economic circumstances but will not give that factor undue weight. The highest period of notice, subject to a few exceptions, is 24 months. Please bear in mind that each case will be decided on its own facts and there is no litmus test. Further, the amount of notice will not always equal the damage award as the employee must mitigate her damages and must also prove her loss (e.g. lost benefits or bonuses).
The following cases from this past year will give you some idea of the courts’ present thinking on the matter. These can be very important factors in each case, especially dealing with senior executives whose compensation can often exceed $20,000 per month.
| Case Name | Employee Position | Income | Age | Period of Employment | Notice Period |
| Ly v Interior Health | Manager of team | $97,000 | 38 | 2 months | 3 months |
| Ram v Burger King | Cook | $21,000 | 55 | 24 years | 12 months |
| Price v 481530 BC Ltd | Manager hair loss clinic and 20% owner | $77,000 (commission and salary) | 47 | 20 years | 20 months |
| Wood v Fred Deeley Imports Ltd | Sales/event planner (not managerial) | $100,000 | 48 | 8 years | 9 months |
| Sollows v Albion Fisheries | Senior manager | $160,000 plus bonus | 60 | 2 years 9 months | 10 months |
| Buchanan v Introjunction | Senior software engineer | $125,000 plus bonus/stock | 27 | None [1] | 6 weeks |
| Sletmoen v Nafco | Machine operator | $66,500 | 52 | 18 years | 16 months |
| Mudrovcic v Engenuity Manufacturing | Responsible position | $81,000 | 48 | 19 years | 21 months |
| Nogueira v Second Cup | Manager | $125,000 | 47 | 8.5 months | 4 months |
| Ensign v Price’s Alarm System | Medical Alert advisor/salesman | $30,000 (salary plus commissions) | 63 | 12 years | 12 months |
[1] An offer of employment was rescinded 2 weeks after being made and prior to employment commencing.
Michael Weiler practices employment and labour law including human rights and prevention of workplace harassment/bullying and independent investigations; advising on the practical and legal issues affecting private family-owned businesses; and more – see his website at www.WeilerLaw.ca . Michael is a frequent seminar presenter and the assistant editor of Canadian Cases on Employment Law. Michael can be contacted at mweiler@weilerlaw.ca . For those who wish to receive articles, seminar notices and blog comments please contact Carolyn Weiler at cweiler@weilerlaw.ca or call her at 604 336 7427.
The content in the Michael Weiler Employment + Labour newsletters and blog is for your general information and should not be taken as legal advice. If you have a specific problem, please contact Michael Weiler to discuss your situation.